Dahne v. Richey, No. 18-761, 587 U.S. ____ (Decided May 13, 2019).
The Supreme Court has denied a prison official’s petition for certiorari from a Ninth Circuit decision determination that a District Court erred in part in addressing a prisoner’s claim for violation of speech and petition rights.
The Ninth Circuit concluded that disrespectful language in an inmate’s petition for redress of a grievance poses no security risk. Without a legitimate penological reason for doing so, the appellate panel held, imposing a content based limitation of a prisoner’s expression is unconstitutional. While a mere request to rewrite a grievance would not violate the constitution, wholesale rejection of a grievance because of content is problematic. Judgement of the district court for the inmate on the speech claim was upheld.
However, the Ninth Circuit found that the district court should have ruled in favor of the prison official on summary judgment in petitioner’s claim that his grievance was dismissed out of hand in retaliation for exercise of expressive rights. The law was not and is not settled that refusal to process a grievance petition, as occurred here, is a clear violation of constitutional rights. As such, the Ninth Circuit found, as a matter of law the prison official’s qualified immunity ought not be disturbed.
Three justices of the Supreme Court appear to have been vexed by the denial of certiorari.
Justice Alito, writing for himself, Justice Thomas and Justice Kavanaugh , observed that the case may have more to it than was shown in the submission before the court and that granting certiorari might have afforded the Court an opportunity to settle that which some perceive to be unsettled.
Most troubling to the dissenters if the suggestion that a prisoner’s speech rights, which may be curtailed, may nonetheless encompass veiled threats to kill or injure a guard. This is particularly so where a prisoner had killed a prison official within memory of the grievance that precipitated this case.
Justice Alito offered the assessment that the Ninth Circuit has “defied both our precedents and common sense” in its conceptualization of the the breadth of “expressive speech” that was perceived to be constitutionally protected. Justice Alito observed that some circuits have upheld prohibitions on coarse or profane language in prisoner’s grievances. Even if such language were found to be protected, however, it would not logically follow that such protections would extend to veiled threats.